FOIA Project Annotation: Judge Ellen Segal Huvelle has ruled that the Justice Department properly withheld information in email discussions that inferred the sexual orientation of certain DOJ employees under both Exemption 5 (deliberative process privilege) and Exemption 6 (invasion of privacy). Responding to a request from Judicial Watch for records concerning the Attorney General's speech to the National LGBT Bar Association, the Office of Information Policy disclosed 66 pages in full and 166 pages with redactions. Judicial Watch only challenged the category of records identified by OIP as "discussing the drafting of the Attorney General's speech which discuss/infer the sexual orientation of certain Department employees." Although OIP claimed the redactions were justified by Exemption 6, in a footnote it also indicated that it was claiming Exemption 5. Judicial Watch argued that OIP had failed to make the Exemption 5 claim in a timely fashion. Noting that as a general rule the government was required to make all its exemption claims in the original district court proceeding, Huvelle pointed out that "here, the disputed issue is somewhat differentâ€"whether it is sufficient for defendant to raise the objection in the supporting sworn declaration and not within the four corners of the motion itself. The Court believes that it is." In a footnote, Huvelle explained that "the presence of the footnotes in the [OIP] Declaration, as well as the legal discussion regarding the deliberative process privilege in the summary judgment motion, provided sufficient notice to the plaintiff that the disputed documents were protected under both Exemption 5 and Exemption 6. This case does not present any sort of gamesmanship by the government, but rather, at most a lack of precision." Judicial Watch scoffed at the idea that puerile speculation about sexual orientation could be privileged. But Huvelle indicated that "contrary to the plaintiff's assertion, the government's justification for withholding parts of the e-mail chain under Exemption 5 is not based on the content of the e-mails, but rather is based on the context in which the comments were made." She agreed with the agency that the redactions were also justified under Exemption 6. She observed that "based on the very small number of individuals referenced, their identitiesâ€"which plaintiff agrees can be protectedâ€"could easily be determined based on the context of the e-mails. Balancing this privacy interest against, at most, the relatively inconsequential (if not non-existent) interests identified by the plaintiff, the Court concludes that summary judgment would be justified under Exemption 6 as well." (Judicial Watch, Inc. v. United States Department of Justice, Civil Action No. 13-0949 (ESH), U.S. District Court for the District of Columbia, May 12)
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/28/2013. ( Answer due for ALL FEDERAL DEFENDANTS by 7/28/2013.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/28/2013., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 6/28/2013 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 07/09/2013)

2013-07-31

6

ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Fields, Rhonda) (Entered: 07/31/2013)

2013-07-31

MINUTE ORDER: As the requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure are inapplicable to this FOIA case, it is hereby ORDERED that the parties shall confer and file a joint proposed briefing schedule by August 14, 2013. Signed by Judge Ellen S. Huvelle on July 31, 2013. (AG) (Entered: 07/31/2013)

MINUTE ORDER re 7 Joint Status Report: Upon consideration of the Parties' Joint Status Report and proposed briefing schedule, it is hereby ORDERED that Defendants' Motion for Summary Judgment is due by 1/24/2014; Plaintiff's Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment is due by 2/14/2014; Defendants' Reply and their Opposition to Plaintiff's Cross-Motion for Summary Judgment is due by 3/07/2014; and Plaintiff's Reply is due by 3/21/2014. Signed by Judge Ellen S. Huvelle on August 15, 2013. (AG) (Entered: 08/15/2013)

2013-08-16

Set/Reset Deadlines: Motion for Summary Judgment due 1/24/2014; Response to Motion for Summary Judgment and Cross Motion for Summary Judgment due 2/14/2014; Reply to Motion for Summary Judgment and Response to Cross Motion due 3/7/2014; Reply to Cross Motion due 3/21/2014. (zmm, ) (Entered: 08/16/2013)

MINUTE ORDER granting 8 Consent Motion to Amend Scheduling Order: Having considered the Parties' Joint Status Report, it is hereby ORDERED that Defendants' Motion for Summary Judgment is due by 02/08/2014; Plaintiff's Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment is due by 02/29/2013; Defendants' Reply and their Opposition to Plaintiff's Cross-Motion for Summary Judgment is due by 03/19/2014; and Plaintiff's Reply is due by 04/05/2014. Signed by Judge Ellen S. Huvelle on November 14, 2013. (AG) (Entered: 11/14/2013)

2013-11-19

9

Consent MOTION to Amend/Correct Order on Motion to Amend/Correct,, by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Fields, Rhonda) (Entered: 11/19/2013)

2013-11-19

MINUTE ORDER granting 9 Consent Motion to Amend Scheduling Order: Upon consideration of the consent motion to amend the scheduling order entered by the Court on November 14, 2013, it is hereby ORDERED that Defendants' Motion for Summary Judgment is due by 02/10/2014; Plaintiff's Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment is due by 03/03/2013; Defendants' Reply and their Opposition to Plaintiff's Cross-Motion for Summary Judgment is due by 03/19/2014; and Plaintiff's Reply is due by 04/07/2014. Signed by Judge Ellen S. Huvelle on November 19, 2013. (AG) (Entered: 11/19/2013)

2013-11-19

Set/Reset Deadlines: Summary Judgment motion due by 2/10/2014. Response to Motion for Summary Judgment and Cross Motion for Summary Judgment due by 3/3/2014. Reply to Motion for Summary Judgment and Cross Motion Response due by 3/19/2014. Cross Motion reply due 4/7/2014. (zmm, ) (Entered: 11/19/2013)

ORDER. Defendant shall produce to the Court for in camera inspection by April 25, 2014, unredacted copies of the documents described in paragraph 20 of Vanessa R. Brinkmanns declaration [ECF No. 10-1] as (b)(6)-(4): portions of e-mails discussing the drafting of the Attorney Generals speech, which discuss/infer the sexual orientation of certain Department employees. Signed by Judge Ellen S. Huvelle on April 18, 2014.(lcesh2) (Entered: 04/18/2014)